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September 27, 2018

ESMA published its final report on the regulatory technical standards on clearing obligation under the European Market Infrastructure Regulation (EMIR). The draft regulatory standards relate to the deferred date of application for the treatment of certain intragroup transactions concluded with a third-country group entity. ESMA has sent the draft regulatory standards to EC for endorsement.

The following are the three Commission Delegated Regulations on the clearing obligation that mandate a range of interest rate and credit derivative classes for clearing:

  • Commission Delegated Regulation (EU) 2015/2205 regarding interest rate derivative classes
  • Commission Delegated Regulation (EU) 2016/592 regarding credit derivative classes
  • Commission Delegated Regulation (EU) 2016/1178 regarding interest rate derivative classes

These regulations contain a deferred date of application of the clearing obligation for intragroup transactions that satisfy certain conditions, and where one of the counterparties is in a third country, in the absence of the relevant equivalence decision. With the deferred dates soon approaching and, in the absence of implementing acts on equivalence on the legal, supervisory, and enforcement framework of a third country under Article 13(2) of EMIR in respect of the clearing obligation, ESMA proposes to prolong these exemptions for a very limited period of time. ESMA, with the first deferred deadline approaching on December 21, 2018, aims to find the right balance between the objective of a temporary exemption and the need to contain the risk of unintended consequences with respect to objectives of EMIR by deferring the date of application for two years (to December 21, 2020). In seeking to ensure simplicity, ESMA also proposes to align the date of extension for the three relevant Commission Delegated Regulations to December 21, 2020 in case no equivalence decision has been adopted. 


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Keywords: Europe, EU, Securities, Clearing Obligation, Regulatory Technical Standards, Intragroup Transactions, Third Country, Equivalence, ESMA 

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